Balkin, Rumsfeld v. FAIR, and Schools’ Right to Protest the Military (Commentary)
on Mar 15, 2006 at 9:55 am
Jack Balkin has written what is (in my admittedly biased opinion) the most interesting and informative post yet published in the blogosphere on the Rumsfeld v. FAIR case, explaining, among other things, why some professors such as Jack, who shared my skepticism of, and discomfort with, the plaintiffs’ constitutional arguments, nevertheless joined in the litigation. Jack is absolutely correct, in my view, that there was a First Amendment argument lurking in the case that would have stood a better chance of success (albeit still a longshot) and that would not have raised as many doctrinal red flags — namely, that the Solomon Amendment was enacted not to improve the military’s access to students (after all, the military had not been complaining of inadeqaute access), but instead to undermine the schools’ criticism of the don’t-ask-don’t-tell policy, which is an impermissible objective. “Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest.” LSC v. Velazquez, 531 U.S. at 548-549. (Jack suggests that this argument would have been better cast as an as-applied challenge, requiring evidentiary development. Perhaps he’s right about that.)
The post ends with a very interesting discussion of the Court’s apparent holding (p.10 of the opinion), based on the SG’s concession at oral argument, that the Solomon Amendment does not prohibit schools from publicly protessting, and even condemning, the presence of military recruiters. “For example,” Jack writes, “law schools might put signs next to the door where the military recruiters sit labeled ‘homophobes,’ and it might arrange for military recruiters to undergo a ‘walk of shame’ as they enter the building.” As Jack notes, federal antidiscrimination laws such as Titles VI and IX would plainly not permit schools to act similarly with respect to, e.g., race and sex: “If a school (and its faculty) were repeatedly to send the message that its black students were not welcome, even though the school did nothing else to prevent the students from attending the school, I have little doubt that the school would have violated Title VI of the 1964 Civil Rights Act. Similarly, if a restaurant had signs at its entrance saying ‘blacks go home’ and ‘we resent serving blacks’ and placed those signs deliberately in order to make blacks feel unwelcome, but did not refuse service to those blacks who came inside, the owners of the restaurant would probably be in violation of Title II. In other antidiscrimination laws, equal access isn’t simply a requirement of no formal limits on physical access. Equal access usually means that you aren’t allowed to send signals that the group is disfavored and unwelcome so as to discourage the group from entering and using the facility.”
Thus, Jack writes that “if the Court follows the reasoning offered in Chief Justice Roberts’ opinion (and at oral argument), . . . the Court must explain why the same reasoning would not apply in Title VI and Title II cases where racist schools and racist restaurants seek to drive off blacks by giving them formal access but sending a clear message that they are not wanted. That is to say, if the Court makes good on its promise of the law schools’ and the law faculty’s First Amendment rights to shun and protest military recruiters, it be must treating the equal access provisions of the Solomon Amendment differently than other antidiscrimination measures. That means that it will not really enforce the Solomon Amendment to give the military the same access as non-discriminating employers, because to do so would violate the free speech and associational rights of the law schools, their students, and their faculty. If the Court takes this path, and follows through on what it said in FAIR v. Rumsfeld, then, ironically, it will have accepted that the Solomon Amendment does not really mean what it says: faculty and students must have the First Amendment right to make the military feel unwelcome, which is to say, they must have a First Amendment right to treat the military differently from other employers.”
I would offer a very slight alternative view, based on statutory distinctions rather than (as Jack suggests) constitutional doubt: Unlike titles VI and IX, the Solomon Amendment is not a classic or “true” “equal access” and antidiscrimination statute. As the Court itself held in rejecting the Harvard/Columbia statutory argument, in at least one important respect the SA requires schools to give preferential treatment to military recruiters: They are exempted from recruiting rules with which all other employers must comply. Some (including the Court) might continue to call the SA an “equal access” requirement, but that description would be accurate only on a very circumscribed understanding of the word “access” (e.g., to mean physical space, perqs, literal access to students, etc.). The statute does not prescribe “equal terms and conditions.” (If it did, the schools could exclude the military by applying to it the same rules that apply to all other employers.) And once it’s understood that the SA does not prescribe equal terms and conditions — both requiring more favorable treatment in some respects (exemptions from conditions that apply to other employers) and permitting unfavorable treatment in other respects (public criticism by the school), it is really not analogous to the classic federal antidiscrimination statutes, which are generally understood to forbid disparate treatment altogether.
Jack’s post suggests that the Court’s “counterspeech” holding, if taken seriously, would mean that “faculty and students must have the First Amendment right to make the military feel unwelcome.” I wonder if Jack is on-board with such a broad principle. After all, the schools don’t have a “First Amendment right” to make African-American students feel unwelcome, do they? The Chief Justice’s own opinion indicates to the contrary: He explains (p.12) that “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” This suggests that the Court’s “schools may still protest” ruling is based on statutory construction, and is not constitutionally compelled — which is as it should be. Indeed, the paragraph in question (p. 10) is carefully, and repeatedly, cast in statutory, rather than constitutional, terms:
“The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools ‘could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests’). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”
